930 F. 2d 29 - Seagrave v. Lake County

MEMORANDUM**

Harry James Seagrave brings this section 1983 action against Lake County, California, various Lake County officials, and others, charging them with, inter alia, unconstitutionally refusing to investigate reports that his children were being abused. The district court dismissed the complaint, apparently before service was made upon the defendants. Seagrave appeals the dismissal.

* We first consider the propriety and scope of our jurisdiction over this appeal. First, the district court purported only to dismiss the complaint in this case, not the action. Ordinarily, an order dismissing the complaint rather than the action is not a final order and thus not appealable. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987). However, if it appears that the district court intended the dismissal to dispose of the action, the dismissal may be considered final and thereby appealable. Id. Here, the finality of the district court's order of dismissal is evidenced by the notation that the complaint was dismissed "with prejudice," and the district court's subsequent denial of Seagrave's "Motion to Vacate Judgment." Accordingly, it is clear that the district court intended its order dismissing the complaint to be final and, as such, is appealable.

Second, we must determine the parties to the appeal. In the district court Seagrave filed suit on behalf of himself and his four children. The notice of appeal, however, identifies only Seagrave as the appellant. In order for this court to exercise jurisdiction over Seagrave's children, they must be named in the notice of appeal. See Torres v. Oakland Scavengers Co., 487 U.S. 312, 317 (1988). As the children were not so named, only Seagrave's appeal is before us today.

Seagrave's complaint essentially alleges two independent constitutional violations--a deprivation of due process due to the defendants' failure to investigate the potential abuse of his children, and a deprivation of due process stemming from the defendants' activities to keep Seagrave separated from his children.

* Seagrave's first alleged constitutional violation is without merit. In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court considered the claims by a mother and child that the County's failure to protect the child deprived the pair of their due process rights. The Court held that the County had no constitutional obligation to protect the child from the "private" violence of his father. See id. at 200. Likewise, the county here did not have a constitutional obligation to investigate the reports of alleged child abuse. The district court did not err in dismissing this claim.

The second alleged violation is equally devoid of merit. Social workers are absolutely immune when performing "quasi-prosecutorial functions." Meyers v. Contra Costa County Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir.), cert. denied, 484 U.S. 829 (1987). Likewise, probation officers have absolute immunity for activities surrounding the preparation of presentence reports. Demoran v. Witt, 781 F.2d 155, 158 (9th Cir.1986). All of the alleged wrongful conduct by either defendants Tryck or Hoover involved either their participation in a judicial proceeding or in the preparation of a presentence report. Accordingly, the district court did not err in dismissing the claims against Tryck and Hoover on grounds of absolute immunity.

The district court also did not err in dismissing the claims against Lake County. Municipalities can only be held liable for the unconstitutional acts of their employees if such acts were conducted pursuant to an established policy or practice. See Meyers, 812 F.2d at 1159. Like Meyers, the acts complained of by the plaintiff were various unauthorized actions committed by the defendants in an effort to deprive plaintiff of custody of his children and in assistance of Ms. Behrens. The County cannot be held liable for such unauthorized activities. See id.

Finally, we consider the district court's dismissal of the claims against Mary Behrens. Ms. Behrens is a private citizen and not a state actor, an essential element of a section 1983 action. The district court did not err in dismissing the claims against her. See Gomez v. Toledo, 446 U.S. 635, 640 (1980).

AFFIRMED.